(1.) Heard Mr. SS Sharma, learned counsel for the petitioner. Also heard Mr. FH Laskar, learned PP, Assam.

(2.) The petitioner along with another namely, Sri Sanjoy Paul were convicted by the trial Court on 13.3.95 in CR Case No.18 of 1994 under section 16(1) (a) (i) read with section 7 of the Prevention of Food Adulteration Act, 1954 (for short, the) and sentenced to undergo RI for six months and also to fine of Rs. 1,0007- each and in default, to further undergo SI for one month.

(3.) Feeling aggrieved by the said conviction and sentence, the appellant preferred an appeal being CA No.22 of 1995 before the learned Sessions Judge, Nagaon. The learned Session Judge by his order dated 17.7.95 confirmed the conviction of the petitioner, Sri Golap Chandra Paul so imposed by the trial Court under the charges as indicated above but acquitted the other accused, Sri Sanjoy Paul.

(4.) The short point raise in this revision petition by Mr. Sharma, learned counsel for the petitioner is that since the complaint was filed against the petitioner as well as Sanjoy Paul (since acquitted by the appellate Court) showing them to be the partner and proprietor respectively of the firm under the name and style of M/s Sanjoy Paul, the prosecution of the petitioner, being the partner of the said firm, in the absence of any complaint against the said firm, is bad and not tenable under the law.

(5.) In support of this submission, learned counsel for the petitioner has relied on a decision of this Court reported in 1973 ALR 169 (Hanuman Prasad Lohia vs. State of Assam and another) wherein this Court held that prosecution of the partner of a firm in the absence of a complaint against the firm is bad in law. The view expressed in Hanuman Prasad Lohias case (supra) was reiterated in another case of this Court in State of Assam vs. Paban Kumar Agarwalla and another reported in (1990) 2 GLR 345 (1990 (1) GLJ 197) wherein in paragraph 11 this Court observed that since partnership firm is a company under section 17 of the Act, the said partnership firm is a legal entity whereas a proprietorial firm is not a company in law. In case of proprietorial firm, section 17 of theis not applicable but a partnership firm clearly comes under section 17 and as such the prosecution of a partnership firm in the absence of any complaint against the said firm is not permissible in law.

(6.) In the instant case, it appears from the perusal of the record that the petitioner was a partner of the firm i.e., M/s Sanjoy Paul but complaint was filed against Sri Gopal Chandra Paul and Sanjoy Paul showing them to be the partner and proprietor of the said firm respectively but there was no complaint against the firm i.e., M/s Sanjoy Paul.

(7.) In view of the legal position as indicated above, this Court is of the view that the conviction and sentence of the petitioner, being the partner of the firm in the absence of any complaint against the said firm, is wholly illegal and bad in law. Consequently, the conviction and sentence of the petitioner is hereby quashed and set aside.

(8.) In the result, the revision succeeds and stands allowed.